WHETHER IT IS DESIRABLE THAT A PARTY CLAIMING TITLE TO LAND VIA TRADITIONAL EVIDENCE BE CALLED AS A WITNESS

CASE TITLE: NGARA & ANOR v. OTAJI (2021) LPELR-54778(CA)

JUDGMENT DATE: 17TH JUNE, 2021

PRACTICE AREA: LAND LAW

LEAD JUDGMENT: MOHAMMED BABA IDRIS, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION

This appeal borders on Declaration of Title to Land.

FACTS

This appeal is against the judgment of the Rivers State High Court. By a writ of summons dated 23rd October, 2007 which was later amended and dated 9th April, 2013, the Appellants as Claimants sought for declaration of title to land, an order of Court setting aside the purported sale of the land to the Respondent, perpetual injunction restraining the Respondent from interfering with his ownership of the land ad damages for trespass.

The Respondent as Defendant filed defence and counter-claimed against the Appellant for title to the same land and other reliefs.

It is the claim of the Appellants that they are the owners of the property situate at No. 90A Abba Street, Mile 1 Diobu, Port Harcourt which is part of their family/ancestral land which they inherited alongside other adjoining properties from their late father, Chief Worlu Ngara of Rebisi Community in Port Harcourt.

It is also the Appellants’ claim that their late ancestor together with his parents were farmers and hunters deforested the land many years ago and that it was during the course of farming and hunting expeditions that they came in contact with the land which was then a thick forest. The Appellants further claim that they took possession of the entire land and remained in undisturbed possession until death.

The learned trial Judge, Honourable Justice E. N. Thompson delivered judgment in favour of the Respondent hence this appeal.

ISSUES FOR DETERMINATION

The appeal was determined on the following issues:

1. Whether the lower Court was not wrong in failing to hold that the appellants proved their ownership of the land situated at No. 90A Abba Street, Mile 1 Diobu Port Harcourt by at least one of the ways of proving ownership of land in Nigeria.

2. Whether the lower Court properly evaluated the evidence of the parties before it reached the findings and conclusion dismissing the appellants’ case while holding that the respondent is entitled to the right of occupancy over the property situate No. 90A Abba Street, Mile 1 Diobu Port Harcourt.

3. Whether the lower Court was not wrong in law and thereby occasioned substantial miscarriage of justice against the appellants when in the absence of evidence to prove his claim of ownership, the lower Court declared the Respondent the owner of the property located 90A Abba Street, Mile 1 Diobu Port Harcourt on the ground that the appellants did not file a defence to the counter-claim of the Respondents.

DECISION/HELD

The appeal was unanimously dismissed. The judgment of the trial Court was affirmed.

RATIOS:

• EVIDENCE – PROOF OF TITLE TO LAND: Ways of proving title/ownership of land
• EVIDENCE – TRADITIONAL EVIDENCE/HISTORY: Duty of a party relying on traditional history
• EVIDENCE – CALLING OF WITNESS(ES): Whether it is desirable that a party claiming title to land via traditional evidence be called as a witness
• EVIDENCE – UNCHALLENGED/UNCONTROVERTED EVIDENCE: Whether where the evidence adduced before a trial Court is unchallenged, the Court still has a duty to evaluate same